KUNDAN KUMAR KUMAI

This is an appeal u/s 15 of the Consumer Protection Act, 1986, preferred against the final order dated 18/03/2021 passed by the DCDRF, Siliguri in Consumer case 112/S/2018.

Brief facts of the appellants’ case are that, the respondent was under going treatment under the appellant /doctor, the owner of the appellant/ ayurvedic clinic, for piles. The appellant/doctor, had then prescribed some medicines and Five (5) injections to be started from 11.05.2018, when the respondent had visited the appellant / ayurvedic clinic. After purchasing the medicines and injections, from the appellant / ayurvedic clinic, the respondent had gone to Doctor Subal Chandra De, who had injected the first injection on 11.05.2018. On 12.05.2018 the respondent, had gone to proforma OP no. 1, for receiving the second injection, who had then injected the respondent. After few hours of receiving the injection, the respondent started feeling uncomfortable and which increased during the night of 12.05.2018. On the following day, when the respondent had gone to proforma OP no. 1 for receiving the third injection, she had narrated her condition to him and he had checked the injection and found that the injection had already expired, in September, 2017. The proforma OP no. 1, had then asked the respondent to produce the remaining injections and on checking those injections, found that those two injections had also expired. The condition of the respondent had further deteriorated and on 14.05.2018, the respondent had gone to proforma OP no. 2 doctor, who started the treatment of the respondent. On 14.05.2018, the daughter of the respondent, lodged a complaint with the Panitanki, TOP and a specific criminal case, being Siliguri PS case no. 302/2018, u/s 420/337 of the IPC had been started.

Thus, the appellants for their wrongful gain, by selling five expired injections had committed medical negligence for which the respondent had been subjected to mental and physical pain and also suffered financial loss. She had then lodged the complaint before the Ld. DCDRF, Siliguri, with necessary prayers.

The appellants, did not appear to contest the case and the case was heard ex-parte. The proforma OP no. 1 and 2 appeared by filing Written Version, but proforma OP No. 1,  denied the claims made by the respondent and only admitted that the injection was an expired one. The proforma OP no. 2 had maintained that the respondent had appeared before him on 14.05.2018, but after the initial treatment he had advised her for treatment by a surgeon, as he was a physician for Gynae problems.

After hearing the parties and ongoing through the materials on record the Ld. DCDRF, Siliguri passed the impugned order directing the appellants to pay Rs. 2,20,000/- (two lakh and twenty thousand) with in 45 days from the date of the order failing which, interest @ 12% per annum, would be attracted, till the date of realization.

Being agreed by the impugned order, this instant appeal had been preferred on the ground that the Ld. DCDRF, Siliguri, had erred in law and facts, while passing the impugned order.

                                                  Decision with Reasons

Ld. Advocate for the appellant, at the time of final hearing, had submitted that the impugned order had been erroneously passed ex-parte, on the ground that reliance had been made on the postal track report, whereas the A/D cards, clearly reflected that the service upon the appellants had not been done as the appellants had never received any notice. That apart, the appellant/ayurvedic clinic had not been represented by any individual and therefore the complaint had been defective due to non-joinder of necessary party. Even though there was contradictory statement by proforma OP no. 1, the impugned order had been passed. Moreover, without any proper evidence the impugned order had been passed. He therefore prayed for setting aside the impugned order.

Ld. Advocate for the respondent, on the other hand, countered, that only the certified copy of the A/D cards had been provided, whereas the note of the postal authority on the envelope containing the notice, had not been provided. Secondly, the appeal had been preferred by the appellants, wherein the appellant/ ayurvedic clinic had not been represented. As regard the contradiction, by the proforma OP no. 1, he did not play any part in the trial apart from filing the W.V. It was therefore, prayed that the impugned judgement had been rightly passed and the same be upheld.

From the certified copy of the A/D filed it clearly showed that the postal remark had been ticked on the point, that the ‘addressee had left without address’ and therefore the same cannot be held to be good service. On the other hand, it had been argued that the envelope containing the notice would also show the postal remark, but in the absence of any such evidence, to contradict the postal remark of the A/D cards, it can be safely concluded that the Ld. DCDRF, Siliguri had erroneously deprived the appellants from putting forth their case, and had decided the complaint, ex-parte.

Under the circumstance, in view of the above observation the case needs to be remanded to the Ld. DCDRF, Siliguri for a fresh trial after giving an opportunity to the appellants to file their W.V. As a result, the instant appeal succeeds.

                                  It is therefore,

                                     Ordered

That the instant appeal be and the same is allowed on contests but without cost.

The impugned order is set aside.

The case is sent to the Ld. DCDRF, Siliguri for a fresh trial, as mentioned in the body of the judgment.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRF, Siliguri, for necessary information.

Statutory amount deposited, be return from whom received.

Joint Registrar, Siliguri Circuit Bench of WBSCDRC, to do the needful.